Obama Administration Signals It May Review a Number of Bush Immigration Policies

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Obama Administration Signals It May Review a Number of Bush Immigration Policies

February 18, 2009

Policy Beat

By

Muzaffar Chishti, Claire Bergeron

Immigration rules are included in the Obama administration's general freeze on all pending or yet-to-be-implemented administrative regulations.

In less than one month in office, the Obama administration has placed several controversial immigration policy initiatives of former President George W. Bush under review and delayed implementation of a few others.

The administration is also reconsidering regulatory changes from Bush's final days in office, such as a new rule for documents that prove employment authorization and the mandatory use of E-Verify for government contractors.

The most significant signs of a substantive review have come from Homeland Security Secretary Janet Napolitano, who issued on January 30 an "Immigration and Border Security Action Directive" requiring her Department of Homeland Security (DHS) to evaluate several programs.

The directive includes the Secure Communities Program and the Institutional Removal Program within Immigration and Customs Enforcement (ICE). Both programs enable ICE to identify and deport foreign nationals who are in jail for criminal convictions, as well as the "Section 287(g)" partnership agreements between DHS and state and local law enforcement, and the deployment of National Guard members to the Southwest border.

Significantly, the directive also asked for a review of ICE's National Fugitive Operations Program (NFOP), a controversial initiative established in 2002 with the goal of finding and removing foreign nationals with criminal records who previously ignored their final deportation orders.

Between 2003 and 2008, DHS officials frequently cited NFOP's success, and former Homeland Security Secretary Michael Chertoff viewed it as one of the cornerstones of his plan to link interior immigration enforcement with national security imperatives.

Roughly 73 percent of those arrested under NFOP between 2003 and 2008 had no criminal record. At the same time, congressional funding for NFOP increased exponentially from approximately $9 million in fiscal year 2003, to $218 million in fiscal year 2008.

Napolitano's directive asks department officials to "provide current metrics of fugitive apprehension and removal (and) clearly differentiate the number of fugitives removed versus those aliens unlawfully present who are simply encountered by teams on assignment."

NFOP must provide its assessment to Napolitano by February 20.

Beyond the directive, Napolitano has indicated she is open to reviewing the driver's license provisions of the REAL-ID Act and that she will seek state governors' input on the act's implementation.

Passed in 2005, REAL-ID requires states to issue driver's licenses with enhanced security measures, including digital photos and machine-readable technology. Residents of states that do not comply by December 31, 2009, will not be allowed to use their driver's licenses to enter federal buildings or board airplanes.

As governor of Arizona, Napolitano openly criticized REAL-ID and signed a bill that prohibited the Arizona transportation department from implementing its driver's license provisions.

The Obama administration's general freeze on all pending or yet-to-be-implemented administrative regulations includes a new rule regarding changes to the I-9 form that employers use to verify that new employees are authorized to work in the United States.

The change eliminates several of the documents that employers were previously allowed to use to verify employment authorization. Originally scheduled to take effect February 2, the rule has been postponed until April 3.

Also delayed due to the freeze is a Bush administration policy that would require federal contractors to use the online E-Verify database to confirm their employees' work eligibility (see the January 2009 Policy Beat for more background).

Immigrant children residing legally in the United States can access government-subsidized health insurance under a new provision in the recently reauthorized State Children's Health Insurance Program (SCHIP). About 4 million children in all are expected to be eligible, but the proportion who are immigrants is unknown.

The Children's Health Insurance Program Reauthorization Act, which extends SCHIP through 2013, is the first law since President Barack Obama took office that has direct implications for immigrants.

SCHIP allows the federal government to reimburse states for providing government-subsidized health insurance to low-income children. In 1997, Congress created SCHIP to help families whose income is above the ceiling for Medicaid but not high enough to afford private insurance.

Former President George W. Bush twice vetoed an extension of the program, saying it was too expensive and would lead individuals with private health insurance to switch to the government plan.

The original SCHIP required children who entered the United States as lawful permanent residents (LPRs) to wait five years before they could qualify for the program.

Immigrant advocates and health-care providers heavily criticized the waiting period, arguing that it jeopardized the health of immigrant children. Health experts and the governors of major states lobbied on behalf of the bill.

The new law, which Obama signed February 4, also requires states to verify that the children receiving SCHIP benefits are U.S. citizens or legal residents.

Read the Senate version of the Children's Health Insurance Program Reauthorization.

Policy Beat in Brief

Latinos on Immigration Issue. Just 31 percent of Latinos consider immigration an "extremely important" issue facing the new president, according to a Pew Hispanic Center (PHC) poll conducted in December 2008. Participants ranked immigration after the economy, education, health care, national security, and the environment. The results seem to indicate immigration has receded in importance among Hispanics, as 38 percent of Latinos labeled immigration as "extremely important" in a similar PHC poll in 2007. The decline in the importance of the immigration issue seems to mirror a national trend. PHC reported that 49 percent of registered voters felt immigration was a "very important issue" in 2008, while 56 percent felt it was "very important" in 2007.

USCIS Ombudsman on T and U Visas. Several obstacles remain for human-trafficking and certain other criminal victims applying for T and U nonimmigrant visas says a memo from the U.S. Citizenship and Immigration Services (USCIS) ombudsman. These obstacles include long processing times, inconsistent cooperation from law enforcement officials, and insufficient numbers of USCIS officers adjudicating visa applications. The Trafficking Victims Protection Act of 2000 created T and U visas, which allow adjustment to permanent status after three years.

Decline in Remittances to Mexico. Mexican workers abroad sent back about $25 billion in 2008, 3.6 percent less than the roughly $26 billion in 2007 and the first drop in 12 years, according to Mexico's central bank. Banco de Mexico attributes the drop to the U.S. recession, which has already prompted some Mexican officials to propose initiatives to lure Mexican workers home. For instance, one proposal would create a new loan program for those returning from the United States so they can start their own businesses.

Border Fence Costs and Delays. DHS spent roughly $823 million on 280 miles of border fencing between 2005 and October 31, 2008, the Government Accountability Office (GAO) found. The report concluded that DHS spent an average of $1.0 million for each mile of vehicle fencing, and an average of $3.9 million for each mile of pedestrian fencing — substantially more than the $3 million per mile of pedestrian fencing the Congressional Budget Office estimated. Although DHS previously set a goal of completing 670 miles of fencing along the U.S.-Mexico border by December 31, 2008, roughly 70 miles of fencing have yet to be completed. Engineering concerns and legal challenges from property owners and environmentalists have slowed completion of the final 70 miles, located in the Rio Grande Valley in Texas.

Check out the Congressional Budget Office cost estimate for border fencing from August 2006.

State and Local Policy Beat in Brief

English-Only Ordinance in Nashville. Voters in Nashville, Tennessee, rejected a ballot measure that would have made English the official language of the city and required all Nashville government business to be conducted in English. The measure was originally intended to save the city money on translation services and promote a unified identity. Critics said the ordinance would make it harder for refugees and other immigrants to access government services. Approving the initiative would have made Nashville the largest city in the United States to adopt an English-only ordinance.

Visit the MPI Data Hub for the latest stats on immigrants in Tennessee.

North Carolina Counties and ICE Program. Five counties in North Carolina have signed agreements with U.S. Immigration and Customs Enforcement (ICE) to participate in the agency's Secure Communities program, which aids ICE in indentifying deportable criminal aliens in county jails. The program allows local law enforcement officials to send county inmates' fingerprints to the Federal Bureau of Investigation and ICE; both agencies then provide criminal and immigration histories. When fingerprints match those of an immigration-status violator, ICE is automatically notified, and ICE officers can conduct a follow-up interview. The participating counties are Buncombe (Asheville) in the western part of the state; Orange (Hillsborough) and Harnett in the central part; and Duplin and New Hanover (Wilmington) in the southeastern part.

Visit the MPI Data Hub for the latest stats on immigrants in North Carolina.

Suffolk County Police Department. Police officers in Suffolk County, New York, will no longer be permitted to ask crime victims about their immigration status, thanks to a new directive from the county police commissioner in response to criticism about the county's incident report form. Previously, Suffolk County Police asked whether a crime victim was a "temporary resident," "foreign national," "commuter," "tourist," "military," "homeless," or "other." Suffolk County, in the eastern part of Long Island, has a history of tension between Latino immigrants and U.S.-born residents, and area teens were recently accused of killing an Ecuadorean immigrant and committing other ethnically motivated attacks.

Visit the MPI Data Hub for the latest stats on immigrants in New York.